The Transport Act 1983

1. By virtue of s 14(2)(b) and (e) of the Interpretation of Legislation Act 1984, the Applicant has a right to have his application considered in accordance with the Transport Act, as it was when the application for review was made, on 24 June 2010.
2. Pursuant to s 169N, an applicant for driver accreditation, who has been refused in accordance with the mandatory refusal in s 169(2)(b), may apply to VCAT for an order that the licensing authority issue driver accreditation. Accordingly, the Tribunal has original jurisdiction.
3. Section 169N(3) provides that the Tribunal must not direct the Director to issue, renew or reinstate driver accreditation unless:

(a) VCAT is satisfied of the matters set out in section 169(1)(b);

(b) the applicant has demonstrated that the issue, renewal or reinstatement is appropriate having regard to the public care objective; and

(i) the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to -

(A) the matters set out in section 169C(3)(b)(i) to (x); and

(B) any other matter that VCAT considers relevant to the application; and

(ii) in all the circumstances, it is in the public interest to make the order.

1. The matters set out in s 169(1)(b) require the Applicant to be:

(i) technically competent and sufficiently fit and healthy to be able to provide the service; and

(ii) suitable in other respects to provide the service.

1. The public care objective is set out in s 164 of the Transport Act:

(1) the public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services-

to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

1. The matters set out in s 169C(3)(b)(i) to (xi) are:

(i) the nature and gravity of the offence and its relevance to the service to be provided by the applicant; and

(ii) the period of time since the applicant committed the offence; and

(iii) whether a finding of guilt or conviction was recorded; and

(v) the age of the applicant when the offence was committed; and

(vi) in relation to any sexual offence, the age of any victim; and

(vii) whether or not the conduct that constituted the offence has been decriminalised since the offence was committed; and

(viii) the applicant's behaviour since committing the offence; and

(ix) the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person; and

(xi) any other matter the Director considers relevant.

1. Where the Secretary to the Department of Justice refuses an application for an assessment notice, the applicant has certain rights to appeal, depending on the category of their application. As the application came under category 2, s 26(5)(b) of the WWC Act gives him the right to apply to the Tribunal for review of the refusal decision. Accordingly, the Tribunal's jurisdiction in this case is review jurisdiction.[9]
2. The Applicant's original application was made to the Tribunal prior to the commencement of the Working with Children Amendment (Ministers of Religion and Other Matters) Act 2014. Section 53 of the current WWC Act states:

Despite the amendments made by the Working with Children Amendment (Ministers of Religion and Other Matters) Act 2014, this Act and the Victorian Civil and Administrative Tribunal Act 1998 as in force immediately before the commencement of Parts 2 and 3 of that 2014 Act continue to apply to -

(c) applications to VCAT if the application was made before that commencement.

1. The Applicant's application to the Tribunal also predates the Working with Children Amendment Act 2012. In VQB v Secretary to the Department of Justice,[10] Macnamara J confirmed that the new provisions apply to matters in which the review application was filed after the commencement of the new provisions. Accordingly, the Applicant's matter should be determined in accordance with Version 23 of the WWC Act, in force between 12 December 2008 and 31 December 2009.
2. At the relevant time, clause 102 of the VCAT Act 1998 provided:

If the proceeding relates to the giving of a negative notice on a category 2 application within the meaning of the Working with Children Act 2005 the Tribunal must have regard to -

(a) any matter to which the Secretary may have regard under section 13(2) of that Act; and

(b) whether, in all the circumstances, it is in the public interest to give an assessment notice.

1. The various matters set out in s 13(2) of the Act are listed from sub-paragraphs (a) to (j) and are as follows:

(2) The Secretary must refuse to give an assessment notice on a category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children, having regard to -

(a) the nature and gravity of the offence or alleged offence and its relevance to child-related work; and

(b) the period of time since the applicant committed, or allegedly committed, the offence; and

(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and

(e) the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and

(f) whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and

(g) the applicant's behaviour since he or she committed, or allegedly committed, the offence; and

(h) the likelihood of future threat to a child caused by the applicant; and

(i) any information given by the applicant in, or in relation to, the application; and

(j) any other matter that the Secretary considers relevant to the application.

1. At the 2010 Hearing, the Applicant relied on a report dated 19 April 2010 and an addendum report dated 17 May 2010, and oral evidence from Mr Ian Joblin, Forensic Psychologist. He also relied on a report from Simon Goh, Psychologist. The Respondents relied on a Forensicare report dated 25 June 2004 prepared by Dr Andrew Carroll, Forensic Psychiatrist, following the Applicant's release from prison on parole.
2. I acknowledge that the reports are now very dated, having been prepared over five and eleven years ago respectively. However, there are some relevant points to note about each of the reports, particularly because the Tribunal can now consider the opinions provided with retrospection.

1. Dr Carroll's report details the personal history of the Applicant, including his criminal offending and circumstances since being placed on parole. Dr Carroll then provides personality assessment and general opinions.
2. Dr Carroll noted that previous assessments at Forensicare suggested that the Applicant was of average intelligence, had little insight and tended to engage in impression management to suit the situation. In addition, he is prone to chronic experience of anger and has a tendency to externalise responsibility for his problems.
3. Dr Carroll further states:

He does appear to be able to adopt other people's point of view and feel some level of empathetic concern which does not necessarily translate into empathic behaviour.

The sadness that he described about the loss of his relationship with his wife and family seemed to relate more to a thwarted sense of entitlement and anger at rejection, rather than a great concern for their welfare or grief at the loss of his family.

1. AA presents as a gentleman with rather narcissistic and histrionic personality traits. There was no evidence of mental illness. His current endeavours to prove his innocence seem more related to personality issues than any underlying mental illness such a depression or delusional disorder.
2. Given that he has relatively recently ceased antidepressants, and given that his attempts to clear his name are likely to end in failure, there is a significant risk of him developing a depressive illness in the future.
3. In terms of risk, at the current time this appears to be low and his energies appear to be channelled into clearing his name. Should he fail in these legal challenges however the risk to himself and potentially others may escalate.

1. Mr Joblin provided a report dated 19 April 2010 and an addendum report on 17 May 2010.[11] He was instructed by PILCH,[12] who assisted the Applicant in preparation for the 2010 Hearing. He has a Bachelors Degree and a Masters Degree in Psychology.[13] Mr Joblin interviewed the Applicant for between 60-90 minutes.[14]
2. The salient opinions contained in Mr Joblin's written reports were:
   • (a) That the Applicant was 'extremely litigious', and he noted that the Applicant had provided an extremely lengthy document as a petition for mercy and that he steadfastly maintained his innocence to the incitement to murder offence. Mr Joblin 'held some concern about the Applicant's litigious presentation';
   • (b) He disagreed with the opinion of Dr Carroll that the Applicant was narcissistic, histrionic, quarrelsome or contentious. He also disagreed that the Applicant could be properly diagnosed with a litigious paranoia disorder. Rather, he viewed the Applicant as a person who believed his rights had been breached;
   • (c) He notes the offences for which he has appeared before courts related to the breakdown of his relationship with his ex-wife only. His relationship with his ex-wife is well and truly over and he no longer sees his daughter, therefore the context involved issues that are no longer relevant; and
   • (d) The Applicant's criminal behaviour has not generalised to others in the community and he has not been involved with any inappropriate dealings with children;
3. During cross-examination, Mr Joblin was asked to make comments about two opinions provided by Dr Carroll. First, that the Applicant tends to externalise responsibility for his problems. Secondly, that the Applicant was presently a low risk because his energies were focussed on clearing his name - but if his legal challenges failed, then the risk to himself and others might increase.
4. Mr Joblin's view was that there was no doubt that the Applicant externalised responsibility for his problems. However, Mr Joblin did not think there was a link between the Applicant failing in his legal challenges and risk to himself and others.[15] He disagreed that violence would necessarily follow.[16]
5. He described the Applicant as a person determined to clear his name in the belief that he is innocent.[17] Although the Applicant was a litigious person, he did not believe that the Applicant was a vexatious litigant or that he could be diagnosed with litigious paranoia.[18]
6. Mr Joblin was unable to give an opinion about whether the Applicant was telling the truth about his wrongful conviction, but he did consider the information provided by the Applicant to be consistent and noted that the Applicant still held the same beliefs to date. He said he had 'a lot of difficulty' accepting the proposition that the Applicant was deluded.[19]
7. In re-examination, Applicant's Counsel recounted the various prior offences committed by the Applicant, for which he received convictions at the Magistrates' Court but did not appeal. Mr Joblin agreed with the proposition that it was inconsistent with a diagnosis of litigious paranoia for the Applicant not to have appealed any of the earlier convictions.[20] Under further cross-examination he accepted the proposition that litigious paranoia could potentially be triggered by a more serious sense of injustice notwithstanding the relatively less serious previous offences not acting as a trigger.[21]

1. The Applicant relied on a report from Dr Simon Goh, Psychologist, dated 14 May 2010. Mr Goh's letter advises that the Applicant was referred to him for management of anxiety and depression symptoms and he consulted with the Applicant for nine sessions between 20 January 2010 and 14 May 2010.
2. Mr Goh's letter states as follows:

AA engaged well during treatment and reported that he benefited from our consultation. AA advised that he has sought employment as a bus driver however is facing obstacles due to his past legal issues. It is my professional opinion that with continuing psychological support, AA is capable of employment as a bus driver. Employment will give AA a sense of mastery and purpose hence enhancing his self esteem. With a better source of income he could also enjoy a higher quality of life. The benefits of employment will therefore greatly alleviate some of his symptoms of depression and improve his mental health. AA indicated he will continue counselling, and will see me on a fortnightly basis.

1. It is notable that in 2004 there was a significant disagreement between Dr Carroll and Mr Joblin about the potential for risk to self and others, in the event that the Applicant failed in his legal challenges. Dr Carroll also mentioned anger management concerns and noted that failed legal challenges could lead to future depressive illness.
2. Eleven years after the report of Dr Carroll, it is now a fact that the Applicant has failed in multiple legal challenges. He has lost his application for special leave to appeal his criminal conviction to the High Court of Australia. The Applicant's 'Petition for Mercy' to the Attorney-General and appeals to the United Nations have also failed to clear his name. He also failed in his first applications to this Tribunal.
3. In my view, it is significant that notwithstanding the multiple failed legal challenges, none of the concerns raised by Dr Carroll have come to fruition. The Applicant has not developed any depressive illness, he has not harmed himself or others and there is no evidence before me that the Applicant presently has any anger or impulse management control issues. He has not had any dealings with the criminal justice system whatsoever.

1. The parties both provided an additional expert report for the purpose of the present hearing. The Applicant relied on a report from Dr Byron Rigby, Consultant Psychiatrist. The Respondents relied on a report and addendum report from Dr Remy Glowinski, Consultant Psychiatrist.

1. Dr Glowinski provided a report dated 15 April 2015 and an addendum report dated 26 June 2015. Dr Glowinski offered the following opinions:
   • (a) There is evidence that the Applicant has engaged in self-destructive behaviours towards himself and others when dealing with emotionally charged situations. There is a pervasive pattern of the Applicant minimising the significance of these behaviours and blaming others for outcomes for which he bears substantial responsibility. He has a limited capacity for self-reflection and psychological insight in this regard;
   • (b) The Applicant has a rigid and inflexible approach to perceived injustices. He appears to have a high regard for his own rights, but not necessarily the rights of others;
   • (c) The Applicant carries a strong mistrust for authority figures and has a strong sense of being victimised;
   • (d) The Applicant has a significant personality disorder, most likely with narcissistic and paranoid elements. Dr Glowinski confirmed that he made a clinical assessment of the Applicant based upon the definitions of personality disorder and paranoid personality disorder, as defined in International Statistical Classification of Diseases and Related Health Problems (ICD-10). The definitions read as follows:

Personality Disorder: ingrained and enduring behaviour patterns, manifesting as inflexible responses to a broad range of personal and social situations. They represent extreme or significant deviations from the way in which the individual in a given culture perceives, thinks, feels and, particularly, relates to others.

Paranoid Personality Disorder: Personality disorder characterised by excessive sensitivity to setbacks, unforgiveness of insults, suspiciousness and a tendency to distort experience by misconstruing the neutral and friendly actions of others as hostile or contemptuous; recurrent suspicions, without justification, regarding the sexual fidelity of the spouse of sexual partner; and a combative and tenacious sense of personal rights. There may be excessive self-importance, and there is often excessive self reference.

(e) The Applicant's attempts to quash previous convictions has reached the stage where the Applicant could be labelled querulous and vexatious;

(f) While some of the Applicant's written materials border on the delusional, he did demonstrate some flexibility in his beliefs and was amenable to reason;

(g) What is known of the Applicant's current state is that he is stable, notwithstanding his lack of insight into his psychological issues and lack of ongoing psychological treatment; and

(h) The Applicant has a number of factors that point to future risk of violence, but there appears little obvious connection between these factors and a risk of violence if working as a taxi, bus or other commercial vehicle driver. There may be scenarios that can be plausibly considered in which the Applicant might react to a perceived slight from a passenger. He did not see any evidence to suggest that the Applicant would be a future risk to a child passenger.

1. Dr Rigby provided a report dated 5 September 2015, an addendum report dated 5 September 2015[22] and a further letter to clarify matters raised in cross-examination.
2. Dr Rigby is a general psychiatrist with 42 years of experience, including extensive civil forensic experience as a treating psychiatrist. Dr Rigby's report notes that it is not his practice to prepare such reports unless for bona fide patients under continued treatment by him. The Applicant is such a person, having consulted with Dr Rigby on 10 occasions and continuing to do so.
3. Dr Rigby notes that he has found appropriate consistency in the Applicant's account of events, motivations and circumstances in all areas in which he has conducted his review.
4. He describes the Applicant has having the qualities of straightforwardness, genuineness and candidness, making him highly transparent. As a consequence, the Applicant is inclined to suppose that others will accept his good intentions and will not perceive his remarks as having anything other than their literal meaning. It is not that he is abrupt, on the contrary, his manner is at all times calm, logical and gentle.
5. The Applicant has reduced insight but only to the extent that he does not see why other people would not accept his frankness and openness. There is a lack of awareness of others peoples' perceptions, that is to say he does not always understand why other people might be dubious or defensive about his intentions. Otherwise, his character, integrity, thoroughness, seriousness, psychiatric stability and insight are within the range of common levels found in the general population.
6. Dr Rigby found no evidence of a paranoid personality disorder. He considered imputing a psychiatric diagnosis or personality disorder to the Applicant a serious error.
7. He did not consider there to be any greater risk in the Applicant holding a bus driver's licence than would be estimated in any other eligible person.

1. On day 1 of this Hearing,[23] the Applicant sought to tender a certificate provided by Dr Roger Chau which read 'I do not consider the Applicant has a paranoid personality disorder'. The certificate contained the bare assertion with no supporting information about how such conclusion was reached. Accordingly, I rejected the tender but I gave the Applicant leave to obtain a more detailed expert report, if he wished to do so.[24]
2. Dr Chau declined the Applicant's request to prepare a report, but he did attend the Tribunal on day 3[25] and gave oral evidence, albeit reluctantly and under the threat of subpoena. Dr Chau stood by his statement that the Applicant had no mental illness. However, it was clear from Dr Chau's answers in the witness box that he was not aware of the nature of the proceedings or the extent of the Applicant's criminal history. He had read but did not form his own view as to the accuracy of the expert reports provided by Mr Joblin or Dr Glowinski.
3. Dr Chau's clinical assessment of the Applicant could be described as superficial at best and it is not possible to have any confidence in Dr Chau's steadfast assertion that the Applicant has no mental illness. I have given no weight to the evidence of Dr Chau.

1. The Applicant provided three witness statements at the original hearing[26] and gave oral evidence commencing on 11 November 2010.[27] I will note some of the relevant matters raised during the cross-examination at the 2010 Hearing.
2. The Applicant was asked about two domestic incidents which took place in June 1997, and which led to his arrest and subsequent charge and conviction for recklessly causing injury. He was also asked about a subsequent charge of stalking in July 1998.
3. The Applicant was subject to an indefinite intervention order at the time of the offence; however the Applicant and his wife continued living together.
4. The first incident occurred on 14 June 1997. The Police Records state:

Charges: Intentionally or Recklessly Cause Injury, Breach of Intervention Order.

The victim attended at police station making a complaint of assault. The applicant is her defacto. The applicant and the victim had a verbal dispute about child and living arrangements. The applicant lost control and pushed victim onto floor and choked victim on throat with both hands. The applicant also pulled the victim's arm up with her back causing her pain. The victim was conveyed to hospital with grazing and bruising to the throat and bruising to her arm and right leg.

1. The Applicant described an argument between himself and his partner about babysitting of their young daughter. His partner insisted that he babysit while she went out. The Applicant worked night shifts as a delivery driver and felt he needed to get some rest. He refused to babysit which he says caused his partner to get angry and she assaulted him. The Applicant stated that 'she kicked my groin, slapped on my face a few times, and used the video tape to knock on top of my head causing a big bruise...'.[28] The police were called. When the police attended he was told to leave the house and return his key to his wife, or be arrested.
2. He returned the key and left the house, in doing so he 'became a homeless man'. [29]
3. The Applicant called Mr Yading Feng as a witness to verify his assertion that he was assaulted in the first instance, and that he was required to leave his home by the police. Mr Feng had a vague recollection of seeing the Applicant in 1997 somewhere around the Footscray Train Station. He said he witnessed the Applicant with injuries on his neck, chest and arm. He also noticed traces of scratches and blood on his shirt.[30] He advised the Applicant to see a doctor to avoid infection.[31] He vaguely recalled being told something about the Applicant's girlfriend or wife causing the injuries,[32] and being told by the Applicant that the police said he was not allowed to go home.[33]
4. The Applicant described attempting to return to the house later that night, at which time he says he was assaulted again by his wife:

At that point, which was beyond my limitation to bear it, I was provoked into a physical reaction to defend myself, RHM lost in that physical battle between us. After I fell asleep in bed at my home, the police came to my home and arrested me in my bed because RHM reported the incident to the police and alleged that I assaulted her.[34]

1. The Applicant described himself as a victim of domestic violence[35] but nevertheless admitted that, by retaliating to the extent that he did, he 'lost control'.[36] He admits he pushed his partner to the floor and began choking her with both of his hands around her throat for a few seconds. His partner's class mate said 'stop it, stop it... you're going to hurt her or kill her'. He regained some composure and realised what he was doing was wrong. The assault ended.
2. The second incident occurred six days later on 20 June 1997. The Police records state:

Charges: Stalk another person and Breach of intervention order (1 charge).

At approximately 0215 hrs 20.6.97 police attended at a residential address regarding a serious domestic. On arrival police spoke to the victim of that address. The victim stated that her ex defacto husband [the Applicant] broke into her house via kitchen window assaulted and threatened her with knife. When police arrived the applicant exited via bedroom window. Police arrested the victim [sic]. An intervention order is current in this matter.

1. The Applicant admits that he entered via a window, and he did so because he no longer had a key. He says he was there to try and work things out. He agrees that he was told by his partner upon entry that she did not want him to be there and she asked him to leave. She told him that she had called the police.
2. When the police arrived he left the flat via a bedroom window and attempted to flee from the police. He denied ever touching a knife, threatening with a knife or saying anything to cause her to believe he was going to use a knife on her. I note that the Applicant was never convicted of threatening his wife with a knife, the charge was struck out at the Broadmeadows Magistrates' Court.[37]
3. The third incident occurred on 18 March 1998. The Police records state:

At approx. 1308 hrs 18/3/98, police attended outside travel agents. On arrival police arrested the applicant. The applicant has followed the victim and caught up to her outside travel agents. The victim is known to the applicant as ex-defacto. And Intervention Order is in place.

1. The Applicant agreed that police arrived outside the travel agency and arrested him. He said that he told his ex-partner that he missed her and missed his daughter, and that he wanted to see his daughter so badly. She started screaming. The travel agent intervened and said 'you've got to leave her alone'. There was no physical altercation. He attributed her screams to a possible misunderstanding of his intentions.
2. During each of the second and third incidents, there was a continuing intervention order in place. The Applicant acknowledged that he knew the effect of the Intervention Order, however, he said that his wife was asking him to do things for her and he had been told by her that it was okay to ignore the Intervention Order.
3. The fourth incident between the Applicant and his ex-partner gave rise to the charge of Incite Murder. The police incident summary report states:[38]

During March 2000 an operation code named 'Backer' was launched after investigators became aware of a suspect who was actively seeking out persons to carry out a 'contract murder' of his ex-defacto wife. Between the 23 March 2000 and 3 August 2000 the target engaged in a number of meetings Footscray Park in Smithfield Road, Footscray with a covert operative who posed as a 'Hit Man'. During the initial meeting the target entered into an agreement to pay the operative $10,000 to carry out the offence. During subsequent meetings the target paid in an amount of money as part of an up front deposit and provided various details of victim's daily routine and movements. In addition he specified the manner in which offence was to take place and offered various suggestions how [the] operative should avoid detection.

1. The Applicant agrees that he met with a man on five occasions between March and August 2000. Four times at Footscray Park and one time in a car yard. On the first occasion, he said that he spoke with the operative for approximately two hours. It was not his expectation to discuss the murder of his ex-partner.
2. The Applicant's evidence was that that the operative encouraged and trapped him into engaging in a discussion about killing his ex-partner. Initially he did not intend to discuss that but when he did begin talking about her murder, he said it was a 'fantasy discussion'. In this context, the Applicant meant that the discussion was 'hypothetical' in nature.[39] He has consistently maintained that he never intended for the murder to actually take place.
3. The Applicant was arrested and charged with incite to murder on 22 August 2000. On 10 October 2011, a jury found the Applicant guilty of the charge. His Honour Flatman J described the offence as follows:
   1. ... at the same time as you were negotiating access arrangements with [your wife] and attending the Family Court, you came into contact with an undercover police officer posing as a hit man. A series of meetings took place between you and the undercover operative between 23 March 2000 and 3 August 2000. The substance of the Crown case was contained in five meetings which took place between those dates and which were tape recorded and transcribed.
   2. In broad terms, they disclose that you wanted to have your wife killed because you felt that you had no choice. You demonstrated hostility towards her because you believed she had cost you a great deal of money, she had framed you, put you before the courts, and turned your daughter against you.
   3. You said that you had been looking at killing her for two to three years and had been put in touch with some Italians two and half years earlier who might do the job. The price for killing your wife was $10,000. During the course of the meetings you discussed various methods for her disposal. Although your primary concern was that she disappear without any suspicion falling on you, you did discuss alternative methods, albeit at the request of the undercover operative. These methods included disappearance, suicide with apology, and the suggestion that a condom obtained from a brothel with foreign semen in it be planted at the scene to give the impression of a rape by a stranger.
   4. You also took practical steps to engage the service of the undercover operative. At the second meeting on 6 April 2000, you gave him a casino chip to the value of $1,000. Later, at the third meeting of 5 May 2000, you paid a further $200 cash. You took ineffective steps to raise money by dealing in drugs with another undercover operative who posed as a drug dealer. At that second meeting, you provided information as to the address, routine and movements of [your wife] which facilitated her identification and the taking of photographs.

Is the Applicant 'technically competent and sufficiently fit and healthy' to be able to provide the service? (s 169(1)(b)(i)

1. The parties agreed that there is nothing before the Tribunal that places the Applicant's technical competence in issue.
2. In terms of the requirement to be sufficiently fit and healthy to be able to provide the services, a person's mental health can be relevant, insofar as it may affect a person's ability to carry out the duties of an accredited driver.[40]
3. The mental state and possible mental disorders affecting the Applicant became the primary focus of evidence before the Tribunal. Dr Glowinski made the following assessment:

I agree with the Respondents that AA carries mistrust of authority and a strong sense of being victimised. I think that AA has a significant personality disorder, most likely with narcissistic and paranoid elements.

1. Dr Glowinski was asked to clarify his comments with respect to whether the Applicant had a paranoid personality disorder. In his Addendum Report, Dr Glowinski wrote:[41]

I think that the volume of evidence available regarding AA points to the ICD-10 definition of paranoid personality being a reasonably accurate description of AA's behaviours.

1. The Applicant strongly disagrees that he has a paranoid personality disorder. He points to the fact that he was assessed in 2004 by Dr Carroll at Forensicare and no such paranoid personality disorder was diagnosed.[42] Such finding was supported by Mr Joblin in his report dated 20 April 2004:

The preoccupation AA has does not amount to a litigious paranoia, which is a diagnosable abnormality. Because it is AA's firm belief that he was wrongly convicted he can make application for a petition for mercy. He has been preparing a document in support of that. He certainly has feelings of injustice and is simply pursuing those issues. It is very difficult under those conditions to indicate that this represents a diagnosable psychological abnormality.[43]

1. Dr Byron Rigby provided a report at the request of Applicant for the purpose of the current proceeding. The Applicant has consulted with Dr Rigby on at least 10 occasions, assisting him with his distress in trying to obtain a commercial bus driver's licence and over matters relating to his former marital relations.[44] I give substantial weight to the opinions of Dr Rigby; given that he is a treating practitioner. Dr Rigby's evidence was comprehensive and consistent in all relevant respects under cross examination.
2. Dr Carroll, Mr Joblin and Dr Rigby all found no diagnosable personality disorder. Dr Rigby stated:

Throughout this extensive review, I have found no evidence that AA can be categorised as having a 'Paranoid Personality Disorder'. ... I consider that imputing a psychiatric diagnosis, let alone a highly speculative categorisation of a personality disorder, to AA is a serious error... It appears wholly erroneous from a clinical point of view.[45]

1. Having reviewed the extensive written and oral expert evidence and viewed the Applicant's conduct at the Tribunal over several days, including time in the witness box, in my view, the Applicant exhibited some paranoid personality traits, especially in his dealings with authority. Indeed, the Applicant seems to accept that he has some paranoid personality traits.[46]
2. All experts agree that the Applicant has devoted extensive energy into clearing his name. In my view, that devotion has become like an obsession and it is that obsession that primarily drives the Applicant, rather than any diagnosable psychiatric personality disorder. I concur with Mr Joblin's view that it is a pre-occupation rather than a psychiatric paranoid condition.[47]
3. Significantly, in my view, to the extent that the Applicant exhibits features of a paranoid personality disorder, they arise exclusively in consequence of his perceived mistreatment within the criminal justice system. Even if it were the case that I accepted the Applicant had a paranoid personality disorder, the space in which the paranoia arises is in relation to his dealings with the law. There is no compelling evidence that such predilection has or would have any adverse impact on his ability to drive commercial passenger vehicles or that his paranoid personality traits would cause any distress, danger or discomfort to a passenger in his vehicle.
4. The observations expressed by Deputy President Macnamara, as he then was, in FC v Director of Transport[48] are apposite:

... The assumption that underlies the Equal Opportunity Act and its provisions as to disability discrimination, is that if a person is able to discharge the duties of a particular occupation, at a particular time the fact that in the past that person has suffered from some disability, or continues to suffer from a disability ought not be held against the person, as long as the person is in fact able to carry out the duties. There is no evidence to contradict Mr F C's account of his life since 2001 (which is almost a decade) to the effect that he has led a sober life and compared to many in our community, including members of the judiciary, has largely managed to avoid adverse attention for his driving. I am satisfied that in accordance with Section 169(1)(b), Mr F C is technically competent and sufficiently fit and healthy to provide the service that accreditation as a bus driver would require him to provide.

1. I do not consider the Applicant's paranoid tendencies, howsoever described, are serious enough to make a finding that he is not sufficiently fit and healthy to provide commercial passenger vehicle services.

Is the Applicant suitable in other respects to provide the service? (s 169(1)(b)(i))

1. The test in s 169(1)(b)(ii) requires the applicant to be 'suitable in other respects to provide the service'. The 'service' referred to is that which must be provided by the holder of a driver accreditation granted under, and subject to, the regulatory requirements of Division 6 of the Act, including that the services be provided in a safe, comfortable, convenient manner which is not fraudulent or dishonest.
2. The 'suitable in other respects to provide the service' test was amended to 30 June 2014 to the current test of 'fit and proper to provide the service'.[49] However, the original test remains applicable to the Applicant as the amendment occurred after the Applicant commenced these proceedings.
3. In Director of Public Transport v XFJ,[50] Maxwell P said of 'suitable in other respects':

...in this statutory context, as a state of satisfaction that he/she is 'not unsuitable in any other relevant respect'. In my view, construing the phrase in this way gives the third requirement ample scope, enabling a decision-maker to take into account any aspect of the applicant's past conduct or character (being a matter not already considered under the first or second requirements) which might be thought to render him/her unsuitable to provide taxi services.[51]

1. The 'suitable in other respects test' therefore essentially involves the same scope of inquiry as the 'fit and proper test.' This Tribunal has treated the two tests as such: in XFJ v Director of Public Transport, the Tribunal considered 'suitable in other respects' at s 169(1)(b)(ii) was 'analogous' to 'fit and proper';[52] while in KYE v Secretary to the Department of Transport, the Tribunal applied the 'fit and proper' test to considering whether the applicant was 'suitable in other respects.'[53]
2. As Macnamara DP discussed in XFJ, the words fit and proper 'have been interpreted to allow the widest scope for judgment and indeed for rejection' and in Australian Broadcasting Tribunal v Bond,[54] it was stated that:

The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

1. The Commission pointed to the Applicant's history of offending: the 'recklessly cause injury', 'stalk another person'; 'breach intervention order' and ultimately the index offence being the incitement to have his wife killed. The Commission say the offences are indicative of a 'profound defect in the Applicant's character'.[55]
2. The relevant question is, notwithstanding the prior serious offending directed towards his wife, does such improper conduct, 16 years later, have any bearing on his suitability to drive commercial passenger vehicles?
3. I accept that actions taken in a person's private capacity may support a finding that a person is not a fit and proper person, depending on its seriousness and relevance to the tasks to be provided. However, the Applicant is applying for accreditation for a licence to drive commercial vehicles as opposed to say, practising in the legal or medical profession, where a significantly higher standard would be expected, given the higher level of trust and responsibility involved in those professions.
4. In my view, the cases relied upon by the Commission to support their submission, that the Applicant is unsuitable, are readily distinguished from the present case.
5. The Commission referred to the Tribunal's decision in El Sayed in which accreditation was refused to a driver who was found guilty of assault after spitting in the face of a post-office worker. It was noted that drivers' activities in buses or taxis will also undoubtedly involve carrying unruly, difficult, aggressive, cognitively-impaired or intoxicated passengers and that an accredited driver needs to be able to calm down such passengers, not aggravate them.[56] The Tribunal found that El Sayed was unsuitable because, amongst other things, he had an unresolved anger management problem.
6. At the 2010 hearing, it was similarly suggested that the Applicant had an anger management problem that would render him unsuitable to provide the service. The Applicant was asked about whether he still harbours any anger. He gave frank evidence that he remained angry with specific police officers for their part in the alleged conspiracy against him. However, he was not angry at the police in general. He was also still angry at the Judge who he says played the 'chess game' against him.[57]
7. The Applicant further said that he was no longer angry with his ex-partner and he regards the issues with her to be in the past.[58] He said he has gotten back to his feet after being arrested and spending time in jail. His life is better now than it was back then.[59] The Applicant confirmed that he has not hurt anyone, including himself, while he was in jail. He was specifically asked whether he had hurt anybody after he failed to quash his conviction in the Court of Appeal and when special leave to the High Court was refused. He was also asked whether he would hurt anybody if his 'petition for mercy' to the Attorney-General was not successful. He responded 'No. I'm going to fight it according to law - within the law, not with doing anything unlawful'.[60]
8. He was further asked what would happen if he ran out of legal options, and he responded 'I just got to cope with it... get on with my life. I'm just fighting for truth and justice'.[61]
9. The Tribunal may be cautious to simply accept, at face value, the Applicant's evidence that he does not have an anger management problem and that he will act always within the law. However, such evidence gains credibility by the reality of his behaviour since his release from custody. The Applicant's clean record since his incarceration strongly supports his contention that his efforts to clear his name will remain lawful. I do not accept that the Applicant has any unresolved anger management problems that would render him unfit to handle difficult passengers, as was the concern in El Sayed.
10. The matter of El Sayed is also distinguishable in other relevant respects. There has been a passage of 15 years since the Applicant's last offending, whereas El Sayed's conduct occurred only 18 months prior to the hearing of his application. El Sayed's offending was generalised to a member of the public, whereas the Applicant's violent offences only ever occurred in the confines of his relationship breakdown.
11. In Director of Public Transport v XFJ,[62] His Honour Justice Ross concluded that public confidence and community expectations may be taken into account when determining whether an applicant is 'suitable in other respects' but that the Tribunal is not bound to do so.[63] His Honour described the test as being vague and subjective:[64]

...The maintenance of public confidence and the meeting of community expectations are matters which may be taken into account in determining whether an applicant is "suitable in other respects" but I am not persuaded that the Tribunal is bound to take such matters into account.

The concepts of 'community expectations' and 'public confidence' are inherently vague and subjective...

The vagueness and subjectivity associated with these concepts tells against the implication that the Tribunal is bound to consider such matters.[65]

1. The Tribunal must be careful not to endorse a vague and subjective process of gauging community expectations and public confidence in an industry when determining whether a person is suitable in other respects. Public opinion on matters such as the present will often be formed without full knowledge of the facts and circumstances, and it can easily be swayed by sensationalist and sub-standard journalism.[66] Lay members of the general public will rarely take the time to read and consider legal judgments in their entirety. As noted by DP Macnamara (as he then was), in XFJ, the Tribunal must consider the mind of the reasonable person, as opposed to wild prejudice.[67]
2. The Commission also point to Dr Glowinski's finding that the Applicant has querulous and vexatious behaviours and that such behavioural traits are inconsistent with a fit and proper person because the Applicant cannot be relied on to submit to the authority of the regulator.[68] In my view, the submission is too broad as it does not identify what it is that the Applicant would not be willing to submit to. The Transport Act is primarily concerned about the safety and comfort of passengers, not whether a licensed person is a cooperative employee.
3. The Commission also submitted that the Applicant has created a conspiracy in which he is the victim of a miscarriage of justice by a biased legal system. He has not been 'jolted into reality' by each unsuccessful appeal, but rather has added them to the conspiracy. The Commission referred the Tribunal to the case of O'Hara v Victorian Institute of Teaching.[69]
4. O'Hara was convicted after producing fake documents and attempting to sell two pistols to undercover police officers. With the aid of his false documents, O'Hara claimed he was the son of Hitler and used falsified documents to claim that one of the pistols belonged to Hitler and the other pistol belonged to Hitler's mistress, Eva Braun. O'Hara did not attend the Tribunal but gave sworn affidavits stating that he was an Israeli intelligence agent deployed with Mossad, who now devoted his life to flushing out terrorists.
5. While the Applicant does put forward conspiracy theories about how he came to be convicted for incitement to murder, his theories are clearly not on par with the bizarre and deluded claims made by O'Hara.
6. I also note the decision of Orchard v Medical Board of Australia.[70] In Orchard's case, the Board submitted that correspondence sent by Dr Orchard to the Board, the Tribunal and the Premier of Victoria, which alleged corruption, a witch hunt and various other things, was so intemperate and outrageous as to indicate that he was not a fit and proper person to practice medicine.[71] The Tribunal described the correspondence as 'diatribe, replete with outlandish accusations, threats, withering criticism of individuals, self-justification and grandiose tangential asides'.[72] Nevertheless, the Tribunal did not consider such conduct rendered Dr Orchard not fit and proper:[73]
   1. ...we do not believe this conduct renders him not fit and proper. We should be cautious before making a finding of not fit and proper in relation to conduct which is separate from the carrying out of Dr Orchard's medical practice. We do not regard Dr Orchard's correspondence as being particularly closely related to the conduct of his practice in the relevant sense. Of course, the subject matter of his correspondence arises out of, and relates to the treatment of psychiatric patients. But it is more properly characterised for present purposes as advocacy for his own position. The Board's case under this head - fit and proper - does not relate to his treatment of any patient(s). It is all about the intemperate expression of his views in correspondence. As such it is more appropriately categorised as conduct engaged in outside the practise of his profession.
   2. The authorities referred to above make it clear that for such personal conduct to render a practitioner not a fit and proper person to practice, it must be of a very serious nature, such that it has a direct bearing on his fitness to practise. We certainly do not condone Dr Orchard's correspondence. Quite the contrary. It was well out of keeping with what would be expected of a senior member of the profession. Here, however, we find that Dr Orchard's correspondence does not go so far as to indicate a defect in character so profound as to affect his suitability to practise...
7. The Applicant's written submissions at times read as diatribes, similar to Orchard. However, I agree with the reasoning in Orchard that the written materials filed in the context of Applicant's legal disputes lacks any meaningful connection to his suitability to drive commercial passenger vehicles.
8. I am satisfied that the Applicant is suitable in other respects to provide the service.

Has the Applicant demonstrated that the reinstatement of driver accreditation is appropriate having regard to the public care objective?

1. The public care objective is set out in s 164 of the Transport Act as follows:

(1) the public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services-

to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

1. The question of whether the Applicant can provide the services with safety, in the present case, overlaps with the assessment of considerations below in (s 169C(3)(b)(i)-(x)), particularly criteria (ix) - the likelihood of the applicant committing another such offence in the future. To avoid repetition, I refer to my comments below which deal with physical safety. The Commission endorsed this approach.[74]
2. The Commission point out that safety and comfort are wide enough to encompass not only physical safety but also mental safety in the mind of a reasonable passenger. The Commission relied upon FC v Director of Public Transport[75] as general authority for that proposition.
3. FC's background included alcoholism and convictions arising from him stealing women's underwear from private property on two occasions. On the second occasion, FC was also convicted of resisting police and making threats to kill (directed at the arresting officers). FC was also a reformed alcoholic and had received a speeding ticket five years earlier for travelling at 144km per hour in a 100km zone.
4. I endorse Macnamara DP's[76] comments in that case, where he makes the point that any such mental comfort of a passenger must be assessed in accordance with standards of reasonableness:[77]

As to 'comfort, amenity and convenience', the matter focused on by Ms Holt was the issue of 'comfort'. I do not understand her to be raising any questions as to the amenity and convenience of the service which an accredited Mr FC might provide. Her suggestion was that the comfort in the mind of passengers who might be affected by knowledge of Mr FC's criminal record. As I had occasion to remark in the somewhat notorious case of XFJ v Director of Public Transport [2009] VCAT 96 in context the reference to comfort seems more likely to refer to the physical circumstances of which a transport service is provided, rather than comfort in mind. I accepted however, that the word is perhaps wide enough to cover that situation. I remain of the view, which I expressed in XFJ that comfort must be judged by reference to the comfort of a reasonable passenger. Some passengers would take the view that they would feel uncomfortable being in the care of a driver who had any significant transgressions in his or her life history. A more reasonable passenger however would, I think, reach a level of comfort based on the conduct of the individual at the particular time that the service was being provided, and would allow for the possibility that people can put wrong doing and failures in life behind them and establish themselves, or rather re-establish themselves as persons of good character. A person considering Mr FC's history would, I think, be able to reach a level of comfort in those circumstances, and so I am not satisfied that there is any doubt as to the level of comfort, amenity and convenience which Mr FC could render as an accredited bus driver to his passengers. To put it another way, I am satisfied that he could render the appropriate service for comfort, amenity and convenience.

1. In my view, the present case is analogous to FC. A reasonable passenger, with knowledge of the facts and circumstances, including the significant passage of time since the offending; the Applicant's behaviour since his release from prison; and knowledge that such offending did not occur in direct connection with taxi or bus driving services; would be able to reach a satisfactory level of mental comfort travelling in a vehicle driven by the Applicant. I have discussed in more detail below my views regarding the Applicant's rehabilitation and behaviour since he was convicted of the incite murder offence.[78]
2. The present case is also analogous to the situation in XFJ[79] where XJF's offending occurred purely in the domestic setting and was unrelated to taxi driving. XJF killed his wife 20 years earlier, but he was found to be not guilty by reason of insanity. Macnamara DP considered the state of mind of passengers travelling with XJF as the driver, and stated:

...I note that an apprehension of a violent attack upon a passenger in a taxicab is a significantly different scenario from the one which occurred in 1990. There, the victim of the attack was a very close personal family member, namely an estranged wife. This is a significantly different event from violence directed indiscriminately to strangers, or relative strangers, which passengers in the taxicab would be.

1. There is not a genuine issue regarding whether the Applicant can provide the service in a manner that is not fraudulent or dishonest. The Applicant has prior offences for stealing casino chips at the casino and for breaching exclusion orders from the casino from 1998 - 2001, but those offences are confined to a period in his life where he had a gambling addiction and was under stress from the deterioration of his relationship. There is no evidence that he has any such affliction now. The passage of time since the stealing offences further reinforces my view that there is an insignificant risk of recidivism.
2. I am satisfied that the Applicant has satisfied the public care objective.

Whether accreditation would pose an unjustifiable risk to the safety of persons using the services... (s 169C(3)(b)(i)-(x))

1. The matters set out in s 169C(3)(b)(i) to (x) of the Transport Act are virtually identical in all relevant respects to the matters set out in s 13(2)(a) to (j) of the WWC Act. The main difference is one of emphasis, namely that the Transport Act looks at the relevance of the offence in relation to commercial passenger vehicle services, whereas the WWC Act considers the relevance of the offence to child related work.[80]
2. Accordingly, my analysis in relation to s 169C(3)(b)(i)-(x) of the Transport Act also applies in relation to s 13(2)(a) to (j) of the WWC Act below, and vice-versa.

(i) Nature and Gravity of the Offence and its relevance to the services to be provided by the Applicant

1. As noted by Applicant's Counsel at the original hearing, the Tribunal has the benefit in this case of the trial Judge's sentencing remarks. The sentencing remarks briefly outline the Applicant's history, including the breakdown of his relationship with his former wife and various encounters with the law (which I have documented above) leading up to the incitement to murder offence.
2. As His Honour stated, the outline of conversations between the Applicant and the undercover police operative hardly painted the Applicant in an honourable light.[81] Nevertheless, His Honour made special mention of a number of significant factors which do weigh in the Applicant's favour, including:
   1. ... There is some strength however in the submission put by Miss Dixon that there was an element of ambivalence on your part. Even in the course of the conversations with the undercover operative, you acknowledged that in one sense what you were doing was quite wrong. Finally, in the last conversation, you expressed surprise that you had joined the ranks of criminals.
   2. I also accept that the history of the relationship discloses a devotion to your daughter and an attempt by you, particularly in the latter stages, to try and establish amicable dealings with your ex-defacto wife. This was reflected in your conversation with the undercover operative at the fourth meeting on 24 May 2000 when you indicated that you were genuinely trying to get back with [your wife].
   3. I also accept that there was an element of naivety in your dealings both with this undercover operative and the undercover operative involved in drug trafficking.
   4. Your inability to organise the appropriate finances between March 2000 and August 2000 does raise a question as to whether you would have ever been able to put such a contract into effect. I also think there is strength in the comments made by Mr Gibson on behalf of the Crown that it was obvious that you were in a heightened emotional state throughout much of the period and that you were probably depressed. Your tone of voice in many of the tapes is a sad one.
   5. ... Ms Dixon submitted that your involvement in criminal activity had proved disastrous at every stage and that you have had time to reflect on your future. I am told that you have learnt a salutary lesson and will not pose any threat to your wife or others in future.
3. The seriousness of the offence is somewhat tempered by surrounding circumstances, as set out by His Honour Flatman J. In his final analysis, His Honour considered three matters particularly relevant to sentencing:
   1. First, given that it is an incitement to murder, arising from the breakdown of a domestic relationship, weight has to be given to the element of general deterrence and there is no doubt that an immediate custodial sentence is appropriate. You have placed your wife in an understandable situation of fear for her future, (that being apparent from [the wife's] Victim Impact Statement). Similarly, in a way not intended at all by you, you have made life more difficult for your daughter. It is totally unacceptable in a civilised community that anyone should be prepared to kill in order to get their own way.

Second, whilst it is true that an incitement to murder, arising out of the breakdown of a domestic relationship, is a very serious offence, there are features of this case that nonetheless suggest that it is not in the high range in terms of an example of incitement to murder. In my view, the circumstances involving the equivocation, naivety, and lack of means available to you, distinguishes this case from more serious examples of incitement to murder.

Third, given the premeditation and hostility displayed in the course of the conversations, together with your interest in purchasing a gun and a silencer, the question of specific deterrence is also an important sentencing consideration. I am urged by Miss Dixon that you have had significant time now to reflect upon the stupidity of retaliation against your wife. Your ventures into crime so far have proved disastrous. Whatever you may feel about your wife's role in your domestic break-up, she could hardly be blamed for your current predicament. I am reminded that there are people in the community presently interested in your welfare and prepared to support you and that you are being encouraged to take a positive view when released from gaol. I hope that the sentence that I impose encourages you to do that. You are presently forty-five years of age. You are intelligent and you have the capacity to get on with your life.

1. In all the circumstances, I impose a sentence of six years imprisonment and I fix a non-parole period of three and a half years before being eligible for parole. I declare that you have spent 437 days in custody which shall be reckoned as part of your sentence.
2. There is no doubt that incitement to murder is a very serious offence and that is the starting point from which to consider this criteria. As the Commission noted, the offence was also committed following a number of violent encounters and an incident of stalking.[82]
3. The Tribunal may also have regard to His Honour's sentencing remarks which shed some light on the Applicant's state of mind and add context to the offending. His Honour noted the Applicant's ambivalence, sad tone and suggested that the Applicant was likely depressed, ultimately concluding that 'equivocation, naivety, and lack of means available' distinguished this case from more serious examples of incitement to murder.
4. The Commission submitted that there is no direct relevance between the offence and the services to be provided by an accredited driver. However, it was also submitted that it is relevant that the Applicant's offence was a violent and extreme reaction to perceived threats against him by the victim.[83] It was submitted that the Applicant may face different, but still provocative, emotionally-charged and challenging situations in the context of driving a commercial passenger vehicle. A resort to violence in the face of a perceived threat and to blaming the other person, is inconsistent with the behaviour an accredited driver must display.[84]
5. In my view, it is necessary to distinguish the offences. The offence of incitement to murder, and the complex relationship breakdown which accompanied that offence, is completely remote from any situation the Applicant is going to encounter driving buses or taxis. Similarly, the offences of stalking and breach of intervention orders have no nexus to driving taxis or buses.
6. The offence which may have some relevance is the assault against the Applicant's wife on 14 June 1997, described above. In this situation the Applicant admits he lost his temper and reacted violently. The Applicant may well have the misfortune of meeting demanding or violent passengers while driving. To this end, it is arguable that the Applicant might respond in a similarly violent manner towards such passengers. Dr Glowinski flagged this risk in his report where he stated that 'there are scenarios which can be plausibly considered in which AA might react to a perceived slight from a passenger'.[85]
7. On closer analysis, it is clear that the recklessly cause injury offence was precipitated by a unique set of circumstances beyond a mere slight from his wife. As I have set out above, the Applicant had an argument with his wife about babysitting arrangements. The Applicant was not violent to his wife on the first occasion. The police attended and told the Applicant to return his key and leave the house, effectively making him homeless. He then returned to the house after wandering in the streets aimlessly for a number of hours. A further argument ensued, on this occasion the Applicant did respond violently. The events leading up to the Applicant, in his own words, losing control, are much more significant and cumulative than a simple insult or disrespectful comment from a passenger on a bus.
8. I also note that the recklessly cause injury offence occurred over 18 years ago, and once again, in the context of a domestic relationship. In a taxi or bus driving situation, passengers would usually be strangers and any interactions would be superficial and transient. I have no evidence before me to suggest that the Applicant has any violent history towards members of the public generally.

(ii) The period of time since the Applicant committed the offence

1. The Applicant was arrested in relation to the incite murder offence on 22 August 2000, the offending having taken place between 23 March and 3 August 2000.
2. The Applicant was released from prison on parole on 29 January 2004 and completed parole on 28 July 2006. He has not committed any further offences since his release from prison.
3. Clearly there has been a significant passage of time since the offending and the absence of any subsequent offending is a strong indication that the risk is re-offending is low.

(iii) Whether a finding of guilt or conviction was recorded and (iv) the sentence imposed

1. The Applicant was convicted and received a six-year sentence of imprisonment, with a non-parole period of three and a half years. The sentence imposed was well below the maximum available, namely life. The lesser sentence is a reflection of His Honour's acknowledgement that the offending was serious but 'not in the high range in terms of an example of incitement to murder'.[86]

1. The Applicant was aged 45 years at the time of his conviction. He is now 59 years of age. The Commission submitted that age was not a relevant factor. I note however, that the Applicant was a mature adult at the time the offending took place, with a young daughter, and clearly understood his legal obligations under the criminal law.

(vi) Age of the victim in relation to a sexual offence

1. This is not a relevant consideration as none of the offences involved sexual offences.

(viii) The Applicant's behaviour since committing the offence

1. The Applicant successfully discharged his parole requirements and has had no involvement with the criminal justice system since that offence.
2. The Commission submitted that the Applicant's good record should be given little weight because the absence of further criminal convictions may simply reflect that the Applicant has not been faced with provocative circumstances in that time. Furthermore, the Applicant has not been driving buses or taxis in the period since his offence.
3. I regard the Commission's submission to be quite unreasonable. First, it is improbable that any person can be incarcerated for three and a half years and function in society for a further 11 years,[87] and not be faced with any provocative circumstances. As the Applicant points out, these proceedings are in themselves evidence of difficult and emotionally charged circumstances.[88]
4. Secondly, dismissing the significance of a 15 year clean record because the Applicant has not been driving taxis or buses during that period creates an impossible 'catch-22' scenario for the Applicant, which the legislation could not have intended. Clearly the Applicant cannot demonstrate a good record of driving buses and taxis unless he obtains accreditation.
5. The Commission also submitted that the Applicant's good behaviour is outweighed by the sustained and extreme attempts to expose a miscarriage of justice. In doing so, the Applicant has not accepted responsibility or undergone any rehabilitation or treatment. I do not consider that a relevant consideration for this particular criteria. However, these matters are highly relevant to Applicant's insight and remorse, which are considered at length below in the context of the Applicant's likelihood of further offending.

(ix) The likelihood of the Applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person

1. A significant portion of the hearing was dedicated to the question of insight and remorse, which is closely linked to the question of whether a person is likely to commit the same or similar offences again. The Tribunal heard extensive oral evidence and considered a number of written submissions from the Applicant on these issues.
2. I am required to consider specifically, any particular threat to a child or other vulnerable person. I do not consider there to be any particular connection between the offence and children, or vulnerable persons. It is an offence in which the potential violence was directed at an adult by another adult, in the context of a personal relationship, not in a work context of any kind, particularly not any child-related work.[89]
3. The Commission submitted that the Applicant's lack of remorse and insight indicates that there is a likelihood of similar offences in the future. In TLM v Secretary to the Department of Justice, the Tribunal succinctly put the issue of remorse as follows:

Remorse for past behaviour may be good evidence that it will not be repeated in the future; lack of remorse leads to a lack of confidence that the anti-social behaviour will not be repeated.[90]

1. Insight is similarly relevant and important. As Kyrou J held in Maleckas:

As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse in relation to such an offence.[91]

1. Insight, in this context, may be reflected in a variety of ways. In Nursing and Midwifery Board of Australia v Omant,[92] the Tribunal stated that insight could be shown by demonstrating:

...an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.[93]

1. The principles as to insight and remorse, as submitted by the Commission, are uncontroversial. I make the following comments.
2. The Applicant filed a 10 page document in support of his application including a 'Public Statutory Declaration'.[94] The statutory declaration commences with the following:

...I make the following statements of legitimate and factual reasons why I have no remorse for my conviction of incitement to murder recorded by the VSC trial judge Geoffrey Raymond Flatman, and VSCA. I exercise my citizen rights to challenge the unlawful miscarriage of justice and relevant illegitimate consequences derived from such injustice that my human and legal rights have been abused by Victoria State via the different bureaucracies of the Victorian government.

1. The document then sets out the Applicant's long list of perceived injustices. The Applicant believes he was the victim of police corruption and that he was coerced behind the scenes (where there were no recordings taken) into inciting the undercover operative to murder his wife. He further says that he was denied adequate time to prepare his defence, denied natural justice, denied a gender balanced jury and denied his human rights to a fair trial by a competent and impartial court. He also states that the Court of Appeal rejected his appeal because they 'loathed him' for filing submissions which were critical of the trial judge. The list of perceived injustices continues.
2. It is not necessary for the Tribunal to wade into the merits of the Applicant's long list of grievances with the criminal justice system. The charge, the conviction, the unsuccessful appeal to the Court of Appeal and the High Court's refusal to grant special leave to appeal are all matters of public record. It is not the role of the Tribunal to review findings of higher courts, the findings of which are binding on this Tribunal. Nonetheless, significant leeway was given to the Applicant to give his version of events. As a consequence, the Tribunal has been better informed of the Applicant's state of mind when he openly declares that he has no remorse.
3. It is clear that the Applicant is not remorseful for the incitement to murder offence for the simple reason that he cannot be remorseful for a crime he ardently believes he did not commit. Mr Joblin explained during crossexamination that concepts of responsibility, remorse and contrition can only be discussed in the context of the perpetrator having acknowledged the commission of an offence. When a person maintains their innocence, they cannot then say they are sorry and express remorse.[95] Mr Joblin states that 'AA believes he is innocent of the offence, so these matters can't be an issue'.[96]
4. Although not remorseful, the Applicant has expressed an understanding that inciting murder is very serious and wrong, and he has expressed an understanding of the consequences which flowed to his daughter and wife.[97] He described incitement to murder as 'horrible'.[98] He cannot come to terms in his own mind that he has been found guilty because he believes that he never formed an intention to have his wife killed, even though he openly discussed the topic with the undercover officers on a number of occasions. For the avoidance of doubt, I do not accept the Applicant's position that he is not guilty of the incitement to murder offence.
5. In relation to the 'recklessly cause injury' offence, he expressed shame for choking his wife and admits that he lost control.[99] Even though he says he was provoked by his wife's initial assault against him, which could be interpreted as an attempt to minimise the significance of the offence, he has still admitted that his violent retaliation was still not justified.[100] He has consistently admitted and acknowledged that the retaliation on his wife was unjustified.[101] It would be a different matter if he were to say words to the effect that she deserved it. He has not expressed any such sentiment.
6. In my view, the likelihood of the Applicant inciting the murder of another person is virtually nil. The offence was the final act in a fraught domestic relationship. It is clear that the Applicant has moved on from that episode and sought to rebuild his life. He has effectively given up on reconnecting with his now ex-defacto wife and accepted that his daughter is no longer in his life.

1. I note that the Applicant has provided additional information about his involvement with a group known as Dads in Distress (DID). The Applicant says that the men in that group emotionally support each other by talking about the similar grievances they have been through. He claims that he assisted others in that group by talking about his experience, and he has encouraged others not to break the law.[102]
2. The Applicant has also been involved in the One In Three organisation which advocates for additional services and support to help men who are the victims of domestic violence.[103]
3. In my view, the Applicant has found some comfort by associating with like-minded people. It highlights the fact that the Applicant's belief in his own innocence has become consuming and somewhat of an obsession and lifestyle for him. Ultimately, the Applicant's involvement in such organisations has no bearing on the factors about which the Tribunal must be satisfied, for the purpose of this application.

(xi) Any other matter the Director considers relevant

1. I have considered the relevant matters raised by the Commission above.

In all the circumstances, is it in the public interest for the Applicant to be accredited?

1. Despite my finding that accreditation of the Applicant would not pose an unjustifiable risk, it is still necessary to consider the public interest criterion.
2. As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[104]

The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[105]

1. There are a number of public considerations relevant to the Applicant. As noted by His Honour Justice Bell (in the context of analysing human rights):

AA has a definite intention and desire to work as a bus driver. For him, obtaining that employment is not a remote or hypothetical prospect. Putting aside the matters at issue in the present case, he appears to be suited and qualified for that employment. His personal circumstances are such that not many fields of employment are open to him. Being a bus driver is one of them. Without employment, he risks becoming welfare dependent and socially isolated.

1. Therefore, there is a public interest in giving effect to the right of a person to engage in work.[106] Similarly, there is a public interest in enabling persons to engage in their chosen field of employment using their qualifications, experience, expertise and skills for the benefit of others, or to work in the field in which they are most suited to work.[107] As Justice Bell stated in ZZ v Secretary, Department of Justice & anor.[108]

In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment[109] or in the field in which they are most suited to work,[110] in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.[111]

1. It is also in the public interest to encourage people to be worthy citizens and people of good fame and reputation.[112] It is also in the public interest to facilitate the rehabilitation of offenders.[113]
2. I also note the comments of Morris J in PJR[114] who found it was in the public interest to direct the Secretary to give an assessment notice to the applicant after finding that there was not an unjustifiable risk:

The notion of 'the public interest' is broad. Certainly I would regard a central consideration to be the need to protect children from sexual or physical harm by ensuring that people who work with, or care for, them are unlikely to inflict harm. In this regard, many of the factors that are relevant in deciding whether the giving of an assessment notice would not pose an unjustifiable risk to the safety of children are also factors that are relevant in assessing whether it is in the public interest to direct the giving of such an assessment notice. However the notion of 'the public interest' might also embrace other considerations. In interpreting similar legislation in New South Wales it has been said that the right of a person to engage in work is relevant. A similar contention might be advanced to the effect that a person has a right to engage in community affairs. It is not appropriate to seek to define the boundaries of what is in the public interest. But I do think it will usually be the case that it will be in the public interest to direct the Secretary to give an assessment notice to an applicant if the tribunal is satisfied that the giving of the notice would not pose an unjustifiable risk to the safety of children.

1. The comments above were endorsed in the decision of LMB, in which their Honours again emphasised that it would be an unusual case for an assessment notice to be against the public interest if there were not an unjustifiable risk to the safety of children:[115]

Once the Tribunal is satisfied that that purpose is achieved, in the sense that the applicant poses no unjustifiable risk to the safety of children, it will necessarily be an unusual case in which the public interest nevertheless requires that no assessment notice be given.

1. In my view, there is nothing so unusual in the present case to warrant a finding that it would be against the public interest to issue driver accreditation, in circumstances where issuing accreditation is not an unjustifiable risk to the safety of passengers.
2. The Commission will be directed to issue the Applicant with driver accreditation.

FINDINGS: AA v Secretary to the Department of Justice

Is the Applicant an unjustifiable risk to the safety of children - s 13(2)(a) to (j)

1. Under the legislation, the applications must be refused unless giving the notice and granting the accreditation would not pose an 'unjustifiable risk' to the safety of children or the travelling public.
2. As I have noted above, the matters set out in s 169C(3)(b)(i) to (x) of the Transport Act are virtually identical in all relevant respects to the matters set out in s 13(2)(a)-(j) of the WWC Act. Accordingly, my analysis above regarding s 169C(3)(b)(i)-(ix) also apply here. I have nevertheless included some additional comments that relate specifically to the working with children application, and respond to various submissions made by Mr Panayi, Counsel for the Secretary.

(a) The nature and gravity of the offence and its relevance to child-related work

1. As Coghlan DP stated in EGS v Secretary to the Department of Justice,[116] a case which also involved consideration of incitement to murder, the offence is one that is directed at an adult by another adult:

... It [incite to murder] is an offence in which the potential violence was directed at an adult by another adult, in the context of a personal relationship, not in a work context of any kind, particularly not any child-related work.

1. Under cross-examination, the Applicant expressed an understanding of the indirect impacts the offending had on his daughter. He acknowledged that it was not good for the psychology of his daughter and children generally to have parents that fought, and noted that it could lead to drug abuse in later life.[117]
2. I have considered the nature and gravity of the offence extensively above. Notwithstanding the serious nature of the offence, for the reasons given, in my view, there is no relevant link between the incitement of murder and child-related work.

(b) The period of time since the applicant committed, or allegedly committed, the offence

1. As discussed above, approximately 15 years has elapsed since the relevant offending and the Applicant has no further recorded offending.
2. Mr Panayi submitted that the passage of 15 years ordinarily would weigh strongly in favour of the Applicant and would be sufficient to demonstrate that he is now a good citizen.[118] However, in the present case because the Applicant has used the past 10-15 years to exercise every single possible appeal right, deflected responsibility for every charge and not shown any insight, then this factor should weigh against him.[119] The exception, which Mr Panayi acknowledged, was that the Applicant had admitted on day 2 of this hearing that choking his wife on the ground was the wrong thing to do and that if he had his time again he would not do it again.[120]
3. The matters raised by Mr Panayi are highly relevant to the question of insight and remorse - which are in turn relevant to the analysis of s 13(2)(g) and (h), namely, the Applicant's behaviour since committing the offence and the likelihood of any future threat to a child caused by the Applicant. Accordingly, I have considered Mr Panayi's submissions in more detail below under the relevant sections.
4. In my view, 15 years is a very significant period of time. The absence of any subsequent offending weighs strongly in favour of the Applicant.

_(c) Whether a finding of guilt or a conviction was recorded for the offence; and

1. The Applicant was convicted and imprisoned for six years with a non-parole period of three years and six months. The Applicant was released on parole on 29 January 2004 and completed his parole on 28 July 2006. The sentence reflects the seriousness of the offence. I have discussed the nature and gravity of the offence above. It is important to note the balance which His Honour Flatman J placed between a sentence that reflected the seriousness of the offence, while also acknowledging the various mitigating circumstances.

(e) The ages of the Applicant and of any victim at the time the Applicant committed the offence.

1. The Applicant was 43 years old at the time of the relevant offending and the victim was approximately 35 years. As noted by Mr Panayi, the Applicant was a mature man when he committed the incitement to murder offence, and other offences. This should count against him.
2. More importantly, the victim of the incitement to murder was an adult. As noted above, the offence has no direct or significant relevance to working with children.
3. The fact that the victim was an adult is a factor in the Applicant's favour, in the context of the WWC Act, which is directed to the safety of children. The other offences were also directed at the Applicant's adult wife or the casino.

(f) Whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the Applicant committed the offence

1. The conduct that was the subject of the relevant offences has not been decriminalised.

(g) The Applicant's behaviour since he committed the offence;

1. Mr Panayi directed the Tribunal to refer to the original decision of this Tribunal,[121] where Aird DP stated 'There is very little evidence about the Applicant's behaviour since he committed the offence' and 'there is no evidence before me about any involvement or interaction with children'. It is the Secretary's submission that the Applicant's application has not been materially advanced since the 2010 Hearing in relation to this consideration.
2. Mr Panayi further submitted that the Applicant has not provided any evidence of his child related skills, his job hunting or what he has been doing with his life. Nor has he provided any evidence regarding community engagement, volunteering or a letter for a prospective volunteer organisation or employer. Nobody from his family or his circle of friends were called to give evidence. There is no information about his living arrangements or job performance.[122]
3. I must respectfully disagree with the Tribunal's earlier finding, that that there was very little evidence about the Applicant's behaviour since he committed the offence available at the 2010 Hearing. In my view, there was a large amount of information available, which I have summarised below.
4. As I have already noted above, since the Applicant committed the offence he was granted parole at the earliest opportunity and he has not had any involvement with the criminal justice system since. After 15 years, this is a factor that weighs strongly in his favour. At the 2010 hearing, some 10 years had passed since the Applicant committed the offence, a further 5 years have now passed. This has at least advanced the Applicant's position somewhat since the last hearing.
5. When considering this criteria, the Tribunal must bear in mind the unusual chronology of this matter. When this matter was remitted to the Tribunal for hearing by a differently constituted Tribunal, the parties were given an option to rely on previous materials or produce new evidence. The parties agreed to rely on previously filed materials but also took the opportunity to obtain further expert reports. The Applicant also provided one additional reference from Mr Dean Mason and a petition in support of his application. It would be unfair to criticise the Applicant for not providing additional information about his activities since the offending specifically for the purpose of this hearing, in circumstances where he has already provided a significant amount of that nature of information at the 2010 Hearing. He is still entitled to rely on the evidence previously produced.
6. In response to Mr Panayi's criticism that the Applicant has not provided any information about his child related skills (akin to the Commission's submission that the Applicant has not demonstrated good behaviour driving taxis or buses since release from prison) it is very difficult for a person in the Applicant's position to demonstrate that he has skills with children unless and until he is given an Assessment Notice in the first instance. There is also an added difficulty in the present case because the Applicant has no specific desire to work with children, his true desire is to drive tour buses carrying Chinese visitors, some of which may have children on board. The assessment notice is merely ancillary to that goal.
7. In my view, the Tribunal formed an overly critical and dismissive view of the Applicant's references provided before the 2010 Hearing.[123] There was too much emphasis on what the referees did or did not know about the Applicant's criminal past. There is a clear distinction that needs to be made as follows.
8. If a referee concludes that an applicant is not a risk to children, but it is evident that the referee has incomplete or no knowledge of the applicant's criminal past, then clearly the opinion can be given little or no weight - because the opinion is not fully informed.
9. However, the weight which may be given to factual information that a referee provides about a person's activities and behaviours, which they have personally witnessed, is not diminished or undermined just because that person is not fully appraised of the Applicant's criminal past.
10. For example, many applicants will provide lay witness statements from friends or colleagues which contain a combination of factual statements about the applicant's activities, and a deductive conclusion from that witness that the applicant is therefore no risk to children. In that situation, the Tribunal can have no confidence in the conclusion that the applicant is no risk if that witness is not fully aware of the applicant's criminal history.[124] However, the Tribunal can still have full regard to the witness's evidence in relation to the applicant's activities.
11. In any event, a lay witness's opinion as to whether or not a person is an ongoing risk begins to converge into the realm of evidence one might expect from an expert. Such evidence would need to be treated cautiously even if the witness was fully appraised.

1. The Applicant's letter to the Working with Children Check Unit dated 20 May 2009 contains a useful summary of the Applicant's activities up until that time.[125] In that letter, the Applicant states that he has taken a number of proactive steps to become an active and positive member of the community. He states that he has taken significant steps rebuilding his life and is making the application to achieve his goal of becoming a qualified bus driver.[126]
2. The Applicant provides a summary of his involvement with the OzLink Personal Support Program, which is run by St Vincent De Paul Aged Care and Community Services in partnership with Centrelink. He states that the program provided him with counselling and employment training and assisted him with re-integration into society and the local community.
3. A written reference was provided from Marlin Haweil from OzLink which confirmed that the Applicant participated in the program 'during the period from 2004-2006'. It further states that 'the Applicant engaged well in the program and worked actively on his identified issues. At all times he presented as being rational.[127]
4. In mid-2008 he commenced with Salvation Army Employment Plus Program in order to continue his search for steady employment. Through this program he passed his written and practical bus driving tests and gained the qualifications needed to become a bus driver. He further says that he passed interviews and was offered a position with a bus driving company, subject to him obtaining his Assessment Notice and accreditation from the Commission.
5. A written reference was provided from an employment consultant, Ms Camille Walles, from Salvation Army Employment Plus. Ms Walles stated:

I have known AA for several months, I have found him to be a patient, cooperative and well spoken candidate who consistently attends appointments on time and is dedicated in his efforts to find work. He is helpful to other candidates, often assisting them to access our job search facilities and has translated simple verbal instructions for Chinese speaking candidates.

1. Margaret Yung, a social worker at Doutta Galla Community Health provided two letters. The first letter dated 30 April 2009 stated that she provided counselling services to the Applicant from June to December 2004. A further letter, in response to a request for further information from the Working with Children Check Unit, dated 30 June 2009 was also provided.
2. Ms Yung wrote that she provided the Applicant with counselling to assist with his 'depression issue and direction for his life'.[128] There was a total of six sessions, each session took 60-90 minutes and it seems the initial consultation on 23 June 2004 took approximately 4 hours. Ms Yung stated that the cognitive behavioural approach worked well and she was able to successfully focus the Applicant's energies into his new direction in life.[129]
3. The Applicant also provided written references from three friends. Mr Gui Dong Cao, a pastor from the local church; Mr Yading Feng, a long term friend and Ms Xiao Shen, a close female friend who he met and provided assistance to in 2006 when she was a new immigrant to Australia. Each of these witnesses portray the Applicant in an honourable light, noting that he donated blood after the Black Saturday fires and donated money to assist relief efforts after the Wenchuan earthquake in China. I do not give any weight to opinions expressed by these witnesses that the Applicant would be no risk to children as they are not experts and I cannot be satisfied that they are fully aware of the Applicant's history.
4. However, the opinions expressed in these references are all consistent with the Applicant undertaking relevant rehabilitation and vocational training, and otherwise displaying positive community attitudes.
5. Ms Xiao Shen gave oral evidence at the 2010 Hearing. Ms Shen met the Applicant at the Adult Migrant English Service, a service which provides information to new migrants. She was browsing the internet when she met the Applicant and a friendship developed. The precise nature of the relationship was difficult to ascertain from the witness. Clearly she trusted him and relied on him for assistance in adapting to life in Australia. She said they met weekly or fortnightly, had dinner together and spoke on the telephone. She stopped short of describing the relationship as romantic, referred to him as a friend whom she trusted, she did not rule out the possibility of a sexual relationship in the future.[130] The Applicant on the other hand, referred to the nature of the relationship to be 'loving'[131] and akin to a platonic boyfriend-girlfriend relationship.[132]
6. The Working with Children Check Unit telephoned Mr Cao seeking further information on 17 August 2009. In relation to the referee's observations about the Applicant's interaction with children the officer recorded Mr Cao as stating ...'...He is generally alright but he has a bad temper'. When asked if he thought the Applicant was suitable to work with children, he replied 'he will be alright working with children. He had problems with adults, hot tempered but normally he is alright'. The officer asked 'why do you say that he had a bad temper' and Mr Cao says 'he drove a taxi for many years. There was someone who didn't want to give him money and wanted to get away and he fought him. But normally he is okay'.
7. Clearly Mr Cao was not a passenger in the taxi during the said incidents that he is referring to on the telephone. In my view, it is apparent that Mr Cao is simply making reference to information which he has learned about the Applicant's past from the Applicant himself, rather than giving evidence that he has personally witnessed the Applicant being hot tempered or having problems with other adults. Mr Panayi was critical of the Applicant for not calling Mr Cao to give evidence to explain his comments.[133] Yet one could be equally critical of the Respondents, as model litigants, for the same reason.
8. Melaki Amurat was an employment consultant at Matchworks Employment Services. Ms Amurat gave oral evidence at the 2010 Hearing. She worked with the Applicant for a period of six months prior to giving evidence (on 17 November 2010) and successfully found employment for the Applicant as a delivery driver for Cantru Meat World. The Applicant had been working in that role for three months, 8 hours per week.
9. Ms Amurat also gave evidence to the effect that Matchworks Employment Services had received positive feedback about the Applicant's performance in that role. Ms Amurat's evidence was not contested. The Applicant clarified that he worked in this role from July 2010 until sometime in 2011 and received a modest $14 per hour.[134] He still received Centrelink benefits and ankle problems made the physical work of delivering meat difficult.[135] He anticipated earning $24-25 per hour driving a bus.

Additional information provided by the Applicant for this hearing

1. Mr Dean Mason provided a reference for the Applicant dated 22 December 2014 and a further statutory declaration dated 21 August 2015. Mr Mason has known the Applicant since early 2010, while facilitating a support group for separated fathers. Mr Mason considers the Applicant to be a 'caring, compassionate and of the highest integrity'. He described the Applicant as having a strong sense of community, being trustworthy and reliable. Mr Mason appears to be fully appraised of the Applicant's past criminal offences, and he was aware that the Applicant considers himself to be a victim of a miscarriage of justice. He states that the criminal matters have not altered his view about the Applicant's character.[136]
2. For completeness, I also note that the Applicant provided a petition signed by 20 people, including himself and Xiao Shen, attesting to their belief that 'AA does not appear to have a paranoid personality disorder'. None of the other people whose names appear are known to the Tribunal. I have not placed any weight on the petition as it has no probative value.
3. Having considered all the material before the Tribunal from 2010 and the present hearing, including a review of the transcripts, I am satisfied that the Applicant has provided the Tribunal with a significant amount of information regarding his activities since the offence. The evidence suggests that the Applicant has proactively sought to improve his life and he has engaged well with support programs. He has put forward evidence of engaging with psychological treatment, training towards his chosen vocation of bus driving and evidence about his employment record. While it is true that the Applicant has not shown any special skills or experience with children, for the reasons above, that does not weigh against him. Overall, I am satisfied that the Applicant's behaviour since committing the offence, is demonstrative of a person rehabilitated and determined to get their life back into order.

(h) The likelihood of future threat to a child caused by the Applicant

1. I have already discussed above the Applicant's lack of insight and remorse. In my view, there was a convergence of a number of matters preceding the incitement to murder offence that led to the Applicant investigating and ultimately 'inciting' the murder of his wife. All those factors were in the context of the relationship breakdown with his wife. The offending also occurred about 16 years ago. The Applicant's steadfast maintenance of his innocence has made this a more difficult determination, but ultimately I have concluded that a lack of remorse does not translate, in this particular case, to any discernable threat of violence in the future. In many cases, involving different surrounding circumstances, the Tribunal will reach an opposite conclusion.
2. The experts largely agree that the risk of any repeat of violence is minimal. Dr Glowinski stated that 'the more likely scenario in which the Applicant might commit violence involve individuals well-known to him'.[137] Furthermore Dr Glowinski did not 'see any evidence to lead me to consider a future scenario in which the Applicant might present a risk to a child passenger'.[138] I concur with that opinion. The other psychological and psychiatric evidence is all in the Applicant's favour in that regard.
3. I note Dr Glowinski's comment that there are 'scenarios that can be plausibly considered in which the Applicant might react to a perceived slight from a passenger'. I do not consider that risk to be any greater for the Applicant than it would be for any other ordinary person in the community. I have discussed anger management above, and I do not consider the Applicant to have any anger management issues. Nor do I consider that the Applicant's paranoid personality traits would translate into violence, let alone violence against a child.
4. I am satisfied that the likelihood of future threat to a child is minimal.

1. Having considered the required matters above in s 13(2), the Tribunal is required to make a finding as to whether granting an assessment notice is an unjustifiable risk to the safety of children. The test is expressed in terms of 'unjustifiable risk', not a, any or no risk.
2. The engagement of human rights and the proper application of the unjustifiable risk test was analysed in depth by His Honour Justice Bell.[139] His Honour considered the competing rights of children from protection of harm and the rights of individuals to work, and to work in their chosen field.[140] His Honour concludes that the concept of 'unjustifiable risk' incorporates notions of weighing, balancing and proportionality, taking into account the matters in s 13(2).
3. In the present case, I am satisfied that granting an assessment notice will not pose an unjustifiable risk to the safety of children. In my view, the risk of harm to children is no greater that an ordinary person who has not committed any offending. Borrowing from Bell J's useful summary, I note the following indications that the Applicant's risk to children is minimal:[141]
   • the offences which AA had committed, including incitement to murder, did not involve children and occurred solely in the context of a fraught domestic relationship breakdown;
   • there is no evidence that AA had harmed children in the past or that he was at risk of harming children as such;
   • in sentencing AA for incitement to murder, Flatman J took many matters in mitigation into account, including AA's state of mind at the time, and expressed a positive view as to his prospects of rehabilitation;
   • AA was released from imprisonment on parole on 29 January 2004, whilst on parole completed a number of rehabilitation programs including for mental ill-health and gambling addiction, and was successfully discharged from parole on 28 July 2006;
   • AA had committed no further offences since committing the offence of incitement to murder in 2001 and had not been in trouble with the police since being discharged from, parole;
   • the expert psychological evidence was that AA had not been and was not likely to be involved in inappropriate dealings with children;

• AA had witnesses attesting to his good character in recent years;

• AA was actively involved in a church and had an ongoing relationship with a woman friend, who gave evidence personally on his behalf;
• AA wanted to be given an assessment notice and driver accreditation for the legitimate reason of obtaining work as a bus driver because prospective employers would require him to have one; and
• AA had expressed shame at the facts and circumstances giving rise to his convictions.

1. Bell J also summarised the factors which the Secretary raised as evidencing that the risk would not be small:
   • although AA committed the offences between 1997 and 2001 more than 10 years earlier [now 15 years earlier], the offence of incitement to murder which he committed in 2001 was very serious, as was the offence of causing serious injury recklessly, which he committed in 1997;
   • although there was evidence that AA was not a risk to the safety of children as such, there was evidence, including expert psychological evidence, that he had anger management problems which might cause him to react violently in situations of stress;
   • although the sentencing remarks of Flatman J referred positively to ZZ's prospects of rehabilitation, his Honour also emphasised the seriousness of the crime, for which AA received a significant sentence of imprisonment;
   • although AA had successfully completed his parole and had not been involved in further offending, there was limited evidence of his activities since being released from prison which, according to the tribunal's finding, made it impossible to determine his level of rehabilitation;
   • although several witnesses had given written character evidence on AA's behalf, they were not fully aware of his criminal convictions and the extent and violent nature of some of the offences;
   • although AA's woman friend gave evidence on his behalf, she used weaker language to describe the nature of their relationship than he did;
   • although the psychological evidence was generally positive, some of the opinions were qualified by reference to the possibility that AA's inability to control his anger might lead him to react violently in frustrating circumstances and that his earlier offending was indicative of anger management problems;
   • although AA had expressed shame about his past offending, he was continuing to protest his innocence and was making serious allegations of bias, dishonesty, conspiracy and incompetence in the legal system.
2. I have considered all of the above. As noted, I do not consider there to be any concern regarding the Applicant's anger management or control issues. I disagree that there is insufficient information available to the Tribunal about the Applicant's rehabilitation. I have also detailed my views regarding the Applicant's lack of insight and remorse, which I have cautiously concluded do not translate to any significant threat of violence, even less so does it represent a risk to children.
3. It follows that I do not consider the Applicant to be unjustifiable risk to the safety of children.

In all the circumstances, is it in the public interest to give an assessment notice?

1. Under cl 102 of Schedule 1 of the VCAT Act, the Tribunal must determine the Applicant's assessment notice application by having regard to:

(b) whether, in all the circumstances, it is in the public interest to give an assessment notice.

1. Justice Bell provides a useful 'review of authorities' in relation to the application of the public interest test.[142] The decision of Secretary, Department of Justice v LMB contains extensive discussion about the proper application of the public interest test, and clarifies the proper approach when the Tribunal has determined that giving a notice would not pose an unjustifiable risk to the safety of children.
2. An applicant who has satisfied the unjustifiable risk test is in a position of advantage when it comes to the public interest stage.[143] Endorsing the decision of Morris J in PJR,[144] their Honours held that:

Once the Tribunal is satisfied that that purpose is achieved, in the sense that the applicant poses no unjustifiable risk to the safety of children, it will necessarily be an unusual case in which the public interest nevertheless requires that no assessment notice be given.[145]

1. I do not consider there to be any matter so unusual in the present case to warrant a finding that it is not in the public interest to grant the Applicant a working with children Assessment Notice, in circumstances where I am satisfied that he is not an unjustifiable risk to children.
2. As noted above, the Applicant is suited and qualified to his chosen field of employment, driving buses. He particularly wishes to drive a tourist bus with Chinese tourists. His personal circumstances are such that not many fields of employment are open to him. Being a bus driver is one of them. Without employment, he risks becoming welfare dependent and socially isolated.[146] Working as a bus driver will further enhance the Applicant's rehabilitation and allow him to provide a positive contribution to the community. These are relevant matters of public interest which work in the Applicant's favour.
3. I am satisfied that, in all the circumstances, it is in the public interest for the Applicant to be granted an assessment notice.
4. The Secretary will be directed to issue an assessment notice.

1. The above analysis sequentially considered each of the applicable tests or 'hurdles' which the Applicant must satisfy to obtain accreditation and an assessment notice. I have reviewed the material before me in light of each of the statutory tests and ultimately I have formed the view, on each occasion, that the Applicant has satisfied the applicable test.
2. I acknowledge that the most concerning aspect of the Applicant's application is his express lack of remorse for inciting the murder of his wife. He does not agree that he is criminally liable. That is the position that the Applicant has consistently maintained since his arrest in 2001 and until now. I have no doubt that the Applicant will continue to maintain his innocence and justify, perhaps primarily to himself, how it is that he came to be convicted for such a serious crime.
3. Although there is no shortage of authorities in which a lack of remorse has caused the Tribunal to find that a person is an unjustifiable risk, each case must be considered on its merits. Lack of remorse is a highly relevant consideration when determining whether there is unjustifiable risk of repeat or similar offending, but it is not the only factor.
4. I have given significant weight to the passage of time since the offending took place, and the clean record that the Applicant has maintained during that period. The Applicant has had no involvement with the law other than his failed legal appeals - which he is entitled to pursue. The clean record is also inconsistent with the suggestion of continuing anger management problems.
5. The preponderance of expert evidence is also in the Applicant's favour. Dr Carroll's report of June 2004 suggested that the Applicant was low risk, but that the risk might increase if the Applicant failed in his quest to clear his name. It is now 12 years since Dr Carroll's report and there have been multiple failed appeals and further protestations of innocence. Nonetheless, the potential risk flagged by Dr Carroll has not eventuated. Nor did the Applicant develop a depressive illness.[147]
6. Dr Remy Glowinski's 2015 report suggests there might be future risk of violence but he considered it more likely that any violence committed would be towards individuals well known to him, and that there was 'little obvious connection between these factors and a risk of violence if working as a taxi or bus driver'.[148] I have considered Dr Glowinski's suggestion that the Applicant might react from a slight from a passenger, but I have concluded that the Applicant does not have any anger management issue, and that the Applicant's violent reaction in the past, resulting in the offence of 'recklessly cause injury' arose from circumstances which are not analogous to a slight from a passenger.
7. Dr Byron Rigby's 2015 also concludes that the Applicant is of no greater risk than would be estimated in any other eligible person if he was granted a licence. I concur with that view. I also do not consider the Applicant to have any significant risk of responding violently to a slight or other provocation from a child.
8. For all of the reasons above, the Applicant is successful in both applications and I have ordered the Commission to issue a driver accreditation, and for the Secretary to issue the Applicant with an assessment notice.

[1] Historical Version: 11/6/2010 to 29/6/2010.

[2] The title of this act was changed from the Transport Act 1983 to the Transport Compliance and Miscellaneous Act 1983 by s199(1) of the Transport Integration Act 2010 No.6/2010.

[3] By order of the Tribunal dated 6 August 2010.

[4] See R v [AA] [2001] VSC 524.

[5] AA v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 2001.

[6] ZZ v Secretary, Department of Justice & anor [2013] VSC 267.

[8] A reference to the Tribunal Book in these Reasons is a reference to the Tribunal Book dated 15 October 2015, jointly filed by the Respondents, in which the relevant material from the first hearing has been reproduced.

[9] Victorian Civil and Administrative Tribunal Act s 42(1).

[10] [2013] VCAT 789 at [28], with reference to Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 cf s 14(2) Interpretation of Legislation Act 1985.

[11] Mr Joblin's report states that he has specialised in forensic psychology over that time and has authored 'many thousands of reports'.

[12] Public Interest Legal Collection House, now Justice Connect.

[13] Report of Ian Joblin, dated 17 May 2010 (second report).

[22] The Tribunal was provided with a copy of the email attaching the addendum report, that email was dated 7 November 2015

[26] TB pages 511-518, 521-524 and 525-526.

[28] AA's letter to the United Nations para 110.

[29] AA's letter to the United Nations para 110.

[34] AA's letter to the United Nations para 110.

[37] TB p 363, LEAP Records, shows that assault with weapon charge was struck out.

[39] See T55.1-9, T82.27-83-1 and T191.17-

[40] FC v Director of Transport [2010] VCAT 437, [18].

[41] Within the answer to supplementary question No. 3.

[42] Report of Dr Carroll, TB at Tab 40.

[43] Report of Dr Ian Joblin, TB at Tab 48, para 13.

[44] Report of Dr Byron Rigby, Statement of Diagnostic Opinion at para 1, TB Tab 23.

[46] AA's 'Replied Verbal Submissions of the Applicant' at para 3.2-3.22.

[47] Report of Dr Ian Joblin, TB at Tab 48, para 13.

[48] [2010] VCAT 437, [18].

[49] Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430; cf The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2011] VCAT 1133 and Applebee v Monash City Council [2014] VCAT 257.

[50] [2011] VSCA 302.

[51] [2011] VSCA 302, [44].

[52] [2008] VCAT 2303, [24].

[53] [2012] VCAT 1877, [31].

[54] Per Toohey and Gaudron JJ [1990] HCA 33; (1990) 170 CLR 321 at 380.

[55] Amended Submissions of the Commission at para 45.

[56] El Sayed v Director of Public Transport [2011] VCAT 367, [14].

[62] Director of Public Transport v XFJ [2010] VSC 319.

[66] Herald Sun: http://www.heraldsun.com.au/news/law-order/two-victorian-men-charged-with-incitement-to-murder-and-make-threat-to-kill-fighting-to-drive-taxi-and-school-bus/news-story/928cb81ea75352eec730a22e80c51413. See also XFJ v Director of Public Transport [2008] VCAT 2303 at [21-22].

[67] XFJ v Director of Public Transport [2008] VCAT 2303 at [21].

[68] Amended Submissions of the Commission at para 46(c).

[69] [2007] VCAT 1962.

[70] [2013] VCAT 1729.

[74] T617.29-T618.3 and Amended Submissions of the Commission at [59].

[75] FC v Director of Public Transport (Occupational and Business Regulation) [2010] VCAT 437 ta

[78] See my analysis below regarding s 169C(3)(b) of the Transport Act and s 13(2)(g) of the WWC Act.

[79] [2008] VCAT 2303 at [18].

[80] Compare Transport Act s 169(3)(b)(i) cf WWCA s 13(2)(a).

[82] SMS v Secretary to the Department of Transport [2012] VCAT 1044, [45].

[83] Commission's Amended Submissions at para 63.

[84] Commission's Amended Submissions at para 65.

[87] AA was released from prison on 29 January 2004 and the final day of hearing was 1 December 2015: 11 years and 10 months.

[88] 22.2.1 Reply of the Applicant to Commission's Amended Submission.

[89] See EGS v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 505 generally, and at para 15.

[90] [2013] VCAT 1000, [42].

[92] [2013] VCAT 1679.

[94] The full title of the document reads 'Victorian Justice And Court System Violated International Human Rights of Law of The ICCPR Treaty And Also Violated Relevant Domestic Law In My Case'. The submission included two documents, namely 'Public Statutory Declaration made in the State of Victoria' and 'Logics to Deduce Illegality of Wrongful Convictions of Incitement to Murder to the Attentions of the Public and Relevant Branch of the Victorian Government'.

[95] Mr Joblin went on to say that insight is a vexed issue, (T136.1) and that is was possible to have insight without remorse. Unfortunately this matter was not fully explored at the original and it not clear whether Mr Joblin believed AA had insight or not.

[101] See Report of Dr Carroll, TB 439 'he admits that he retaliated violently on one occasion in 1997'; See T41.24 'I lost control'; T41.30 'So then I thought, oh, it's not right'.

[102] Statement of AA, para 16, filed 10 January 2015.

[103] http://www.oneinthree.com.au/history/

[104] [2009] HCA 51; (2009) 240 CLR 140, 162 [20].

[105] Citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [31]-[32] (French CJ), [69] (Gummow, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary Department of Justice No 2 [2010] HCA 24; (2010) 241 CLR 320, [13].

[106] See eg PJR v Secretary to the Department of Justice [2006] VCAT 2455; (2006) 25 VAR 336, 345.

[107] See eg SVP v Secretary to the Department of Justice [2010] VCAT 1496; LMB v Secretary to the Department of Justice [2011] VCAT 595, [33]-[34].

[108] [2013] VSC 267 at [203].

[109] MH [2008] VCAT 1514 (22 July 2008) [33] (Judge Harbison, Vice-President).

[110] SVP v Secretary, Department of Justice [2010] VCAT 1496 (8 September 2010) [42] (Lambrick DP).

[111] LMB v Secretary, Department of Justice [2011] VCAT 595 (8 April 2011) [33]-[34] (Judge Hampel, Vice-President) (upheld on appeal in Secretary, Department of Justice v LMB [2012] VSCA 143 (29 June 2012) (Warren CJ, Osborn JA and Cavanough AJA); see also PMY v Secretary, Department of Justice [2011] VCAT 968 (2 June 2011) [35] (Judge Davis, Vice-President) ('PMY'); KX v Secretary, Department of Justice [2010] VCAT 2023 (13 December 2010) [55] (Judge Lacava, Vice-President).

[112] FC v Director of Public Transport [2010] VCAT 437, [27].

[113] See eg BGD v Secretary to the Department of Justice [2010] VCAT 50, [62]; FC v Director of Public Transport [2010] VCAT 437, [27].

[114] Re PJR v Department of Justice [2006] VCAT 2455 at [45].

[115] Per Warren CJ, Osborn JA and Cavanough AJA in Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [ 2012] VSCA 143 (29 June 2012) at [61].

[116] [2009] VCAT 505 at [15].

[121] AA v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 2001 at [25] and [42].

[123] See 2010 Hearing from para 27-41.

[124] Even if fully informed of the person's criminal past, the opinion is still of questionable relevance given that person is not an expert in assessment of risk factors, as a psychologist or psychiatrist would be expected to be.

[139] ZZ v Secretary, Department of Justice & anor [2013] VSC 267.

[140] Protection of Children [54]-[71]; Right to Work [72]-[98] and Review of Authorities [97]-[141].

[141] [At 164]. References to ZZ in the Court of Appeal decision have been replaced with the Tribunal's pseudonym of AA.

[144] [2006] VCAT 2455; (2006) 25 VAR 336, 345 [45].

[145] [2012] VSCA 143 (29 June 2012) [61] (footnote omitted).